Supreme Court Resolves Conflict Regarding the Testing of Individually Packaged Controlled Substances in Drug Trafficking Cases

By: J. David Marsey


In October 2013, the Florida Supreme Court resolved a conflict between Florida appellate courts regarding how controlled substances must be chemically tested and under what circumstances the substances may be packaged together. Prior to this ruling, law enforcement agencies and courts in North Florida operated under a different legal standard than the rest of the state. In Greenwade v. State, the Supreme Court held that where white powder is found together, but in separate packages, the State must conduct a chemical test of each individual package before combining the substances for weighing. This decision reversed a lower court decision which permitted multiple baggies of white powder to be aggregated for testing and weighing. 

In this case, the Jacksonville Sheriff’s Office executed a search warrant on the Greenwade residence and located a green bag containing nine one-ounce baggies, each of which contained white powder. The defendant admitted that the green bag contained cocaine and that it was his. When the powder was seized, the contents of each of the nine baggies was placed into a single sealed bag and submitted to the laboratory for chemical testing and weighing.    The comingled powder weighed a total of 234.5 grams and contained cocaine. Greenwade was convicted of trafficking more than 200 grams of cocaine and sentenced to a fifteen years minimum mandatory sentence. In affirming his conviction, the First District Court of Appeal reasoned that because the Florida Supreme Court had previously upheld the constutionality of Florida’s drug trafficking statute which permitted a conviction for trafficking “any mixture containing cocaine,” that it was permissible to commingle the white powder prior to testing and weighing.

The Supreme Court rejected this rational because one or two packets containing cocaine found amongst other packets containing a similar-looking white powder is no assurance that the untested packets also contain cocaine. The Court recognized that a vast variety of other white powdery chemical compounds, including counterfeit controlled substances, could appear similar upon visual inspection. Once multiple packets of individually wrapped powder are commingled before they are chemically tested, the simple process of commingling irreversibly destroys both the independent chemical composition of each individually wrapped packet and the ability to discern whether the pre-commingled substance was controlled or counterfeit. Therefore, each individual package of white powder must be maintained separate until chemical testing confirms the presence of controlled substance. The Court was careful, however, to limit its ruling only to cases involving white powder. It specifically addressed but left intact previous decisions which do not require the chemical testing of individually wrapped packages of crack cocaine or marijuana, because these substances do not pose an identifiable danger of misidentification.

The impact of this case will only be felt within the First District, because every other District that has confronted this issue has already held that the pre-testing commingling of white powder believed to be controlled substance cannot be used to establish the statutory weight thresholds for trafficking. The following thirty-two counties are located within the First District: Alachua, Baker, Bay, Bradford, Calhoun, Clay, Columbia, Dixie, Duval, Escambia, Franklin, Gadsden, Gilchrist, Gulf, Hamilton, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Madison, Nassau, Okaloosa, Santa Rosa, Suwannee, Taylor, Union, Wakulla, Walton and Washington. Law enforcement agencies within these counties should immediately review their evidence collection, packaging, storage and testing policies and procedures to ensure that they are in conformity with this binding opinion. Agencies should immediately desist from commingling white powder suspected of being a controlled substance prior to chemical testing or risk compromising drug trafficking cases.